Terms & Conditions
2.1 In this Agreement, unless the context indicates otherwise:
APP means the mobile software application of Lentune through which the Customer can access and use the Subscription Services, and includes any upgrades of the APP and any other software or documentation which enables the use of the APP.
Apple means Apple Inc and other companies within its group.
Apple Store means the store/platform operated by Apple making the APP available to iOS devices.
Authorised Users means the Customer’s personnel who have been authorised by the Customer to access and use the Services and have received Login Details.
Background Materials means, in relation to a party, any software, documents, data, designs, information or other materials (in any form, including hard copy and electronic form, human-readable and otherwise) which have been developed or acquired by or on behalf of that party prior to this Agreement or not specifically pursuant to this Agreement, and in the case of Lentune, includes all rights in the Website, the APP, the Services and the Content;
Business Day means any day excluding Saturdays, Sundays, and statutory public holidays in Christchurch, and excluding any day in the period beginning on 25 December in any year and ending on 5 January in the following year.
Business Hours means 8.30am to 5pm (NZ time) on Business Days.
Confidential Information includes all information exchanges between the parties to this Agreement, whether in writing, electronically, or orally. It includes, in the case of the Customer, all Customer Data, and in the case of Lentune, all Content.
Content means content made available to the Customer via the Subscription Services, but excludes any Customer Data.
Customer Data means any data of the Customer that it or any of its Authorised Users upload into the Subscription Services or otherwise make available via the Services.
Effective Date has the meaning given to it in the Order Form.
Fees means the Subscription Fees and any Other Fees.
Fair Use Policy means that the use of the Services must be fair, reasonable and not excessive as determined by Lentune (acting reasonably) and by reference to usage by other users, and usage will be considered excessive and unreasonable where it materially exceeds the average and/or estimated use patterns over all users across the Website and/or the APP (as applicable).
Order Form means the front end to this Agreement, including the Services selections made by the Customer and the corresponding Fees.
Force Majeure Event means any event, circumstance, occurrence or omission which is beyond Lentune’s reasonable control and, as a direct or indirect result of which, Lentune is prevented from or delayed in performing any of its obligations under this Agreement (including, without limitation, weather events or other forces of nature, action or inaction by any government agency, strikes or industrial disputes, pandemics, acts of God, denial of service and other cyber-attacks, war, terrorism or civil disturbance.
Good Industry Practice means, in relation to any activity, the exercise of a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in New Zealand in substantially the same type of activity, under the same or similar circumstances.
Google means Alphabet Inc and other companies within its group.
Google Store means the store/platform operated by Google making the APP available to Android devices.
Initial Term means the initial period specified in the Order Form (or otherwise notified by Lentune), and if no such term has been specified (or notified by Lentune), the Initial Term shall be 12 months from the Effective Date.
Intellectual Property means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know-how and trade secrets, operating manuals, quality manuals and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers, and benefits in respect of the same.
Minimum Configurations means the minimum Customer system or software requirements as notified by Lentune from time to time.
Other Fees means any fees, cost or charges payable by the Customer for the Other Services (if any), as specified in the Order Form, or as otherwise required by this Agreement.
Other Services means any implementation services, support services and/or other services specified in this Agreement and which shall be performed by Lentune pursuant to this Agreement.
Personal Information means information (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an identifiable individual, or an individual whose identity can be reasonably ascertained, from that information.
Services means the Subscription Services and the Other Services (if any).
Subscription Services means the business administration automation services supplied by Lentune via the Website and the APP, as selected by the Customer the Order Form.
Subscription Fee means the service fees and additional fees payable for the Subscription Services, as specified in the Order Form, which shall be payable on and from the Effective Date.
Subscription Limitations means any limitations on the Customer’s account (for example, limitations on the number of Authorised Users that may be granted access to the Services), as specified in the Order Form.
Uptime means the percentage of time during Business Hours when the Subscription Services are available for use by the Customer in accordance with (in all material respects) this Agreement.
Website means www.lentune.com.
2.2 In this Agreement, unless the context indicates otherwise:
2.2.1 the term includes or including (or any similar expression) is deemed to be followed by the words "without limitation";
2.2.2 any obligation not to do anything includes an obligation not to suffer, permit, or cause that thing to be done; and
2.2.3 all monetary amounts are stated exclusive of taxes and in New Zealand dollars, and all amounts payable by a party under this Agreement are to be paid in that currency.
3.1 This Agreement will commence on the Effective Date and will continue until terminated in accordance with its terms.
4.1 Subject to compliance by the Customer with this Agreement, Lentune grants to the Customer a non-exclusive, non-transferable and non-assignable right to access and use the Services solely for the Customer’s own internal business purposes. Internal business purposes specifically excludes any commercialisation or exploitation of information technology products or services.
4.2 Lentune may, at any time and without liability to the Customer, modify (including, without limitation, any modification or redesign of the organization, look, feel, navigation or other elements of the Services, APP or Website, or discontinue the Services or any part thereof (temporarily or permanently) with or without notice.
5. Accessing the services
5.1 Upon acceptance by the Customer of the Order Form, Lentune will:
5.1.1 create an account for the Customer on the Website and/or the APP through which the Customer and its Authorised Users may access and use the Subscription Services; and
5.1.2 provide the Customer’s Authorised Users (as notified by the Customer) with login and password details to enable them to access the Subscription Services (Login Details), subject to any Subscription Limitations.
5.2 The Customer is responsible for keeping all access information (including all Login Details) secure.
6. Customer obligations
6.1 The Customer must cooperate with Lentune and provide to Lentune (and its personnel) all assistance, information, documentation, and access to the Customer's Authorised Users and systems that Lentune may reasonably request to enable Lentune to provide the Services and perform its obligations under this Agreement.
6.2 The Customer will:
6.2.1 ensure that each Authorised User strictly complies with the terms of this Agreement in its access to and use of the Services;
6.2.2 comply (and ensure its Authorised Users comply) with all applicable laws in relation to the access and use of the Services, as well as all instructions and policies notified by Lentune from time to time;
6.2.3 provide, at its own expense, all systems, infrastructure (including internet and other network connections), and resources required to receive the benefit of the Services; and
6.2.4 ensure all Authorised User workstations (through which the Authorised User will access the Subscription Service) meet or exceed the Minimum Configurations.
6.3 The Customer shall not (and shall ensure its Authorised Users do not):
6.3.1 use the Services for any purpose other than the Customer’s internal business purposes;
6.3.2 modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Services (or any part of them) or otherwise attempt to defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Services (or any part of them);
6.3.3 reproduce, duplicate, copy, sell, assign, transfer or otherwise exploit for any commercial purpose the Services (or any part of them); or
6.3.4 introduce (and use all reasonable endeavours (including adopting Good Industry Practice) to prevent the introduction by any third party of) any viruses, malware, trojan horses, worms, time bombs, or similar harmful programming routines to the Website, APP, Services and any other technology infrastructure utilised by Lentune.
7. Support services
7.1 Lentune shall:
7.1.1 Provide helpdesk support during Business Hours, subject to its Fair Use Policy. The Customer may log support call to the Lentune helpdesk by emailing firstname.lastname@example.org (on a 24/7 basis) or calling +64 3 351 9110 (Business Hours only).
7.1.2 Endeavour to resolve any fault or issue in the Services notified by the Customer to Lentune via the helpdesk as soon as practicable during Business Hours taking into account the relevant fault or issue.
7.2.1 Lentune considers that its Fair Use policy has been breached, the helpdesk is otherwise being abused by the Customer or any of its Authorised Users or the fault or issue has arisen as a consequence of the actions of the Customer or its Authorised Users; or
7.2.2 a request for support or associated services by the Customer requires development work or Customer specific enhancements or modifications to the Services or any underlying software or systems, Lentune will notify the Customer and will charge the Customer an hourly rate (at its standard rates) for the relevant support or development services (as applicable).
8. Fees & payment
8.1 Lentune will issue (either directly, or via its billing agent) a tax invoice to the Customer:
8.1.1 for the Implementation Fees, on the date that this Agreement is accepted by the Customer; and
8.1.2 for the Subscription Fees:
(a) if payment is to be made by direct debit, no later than two days prior to the relevant Fees being debited from the Customer’s account; or
(b) if payment is to be made by the Customer on invoice, on the first day of each month following the Effective Date.
8.2 The Customer will pay to Lentune (in full without set off or deduction):
8.2.1 any Implementation Fees payable under this Agreement in advance within 7 days of the date of the invoice issued by Lentune under clause 8.2;
8.2.2 all Subscription Fees in arrears (from the Effective Date), within 7 days of the start of each month following the Effective Date. All Subscription Fees must be paid by direct debit, unless Lentune has consented in writing (in its sole discretion) to payment on invoice.
8.3 Where the Customer is paying by direct debit and has completed Lentune’s direct debit requirements, the Customer is deemed to have authorised Lentune (or, as applicable, its billing agent) to debit, from the Customer’s nominated bank account, any Fees as and when due under this Agreement.
8.4 Without limiting any other rights that Lentune may have, where the Customer fails to make a payment by the due date, interest will accrue at a rate of 10% per annum on any amounts which are not paid by the due date, payable by the Customer on demand.
8.5 Lentune may (in its discretion) review the Subscription Fee and any Other Fees at the end of each year throughout the Term, provided that the Subscription Fee shall not increase by more than 10% of the relevant fee in any single year of the Term.
8.6 If a dispute arises in respect of an invoice issued under clause 8.1, the Customer shall notify Lentune promptly of such dispute and pay the undisputed portion of the invoice by the due date for payment. The disputed portion of the invoice will be dealt with in accordance with the dispute resolution process in clause 15.
8.7 Unless expressly agreed otherwise by Lentune (in writing), any discounts provided by Lentune to a Customer shall expire on the expiry of the Initial Term, and standard rates will commence.
9. Service levels
9.1 Lenture will use its reasonable endeavours to ensure that the Uptime for the Services is at least 99.5% in each calendar month (Uptime Commitment). However Lentune does not warrant or guarantee that the Services will be continually available or fault free.
9.2 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Uptime Committement has been achieved in any calendar month:
9.2.1 a Force Majeure Event;
9.2.2 a fault or failure of the internet, any public telecommunications network or other third party utility;
9.2.3 a fault or failure of the Customer’s computer systems or networks;
9.2.4 breach by the Customer of this Agreement or any act or ommission of the Customer or any of its Authorised Users;
9.2.5 scheduled maintenance on the Website or Services; or
9.2.6 any essential security related maintenance on the Website or Services.
9.3 In the event of a failure by Lentune to meet the Uptime Commitment in any month, Lentune shall endeavour to rectify the failure (or cause of such failure, as applicable). Except as specified in clause 15.1.1, this shall constitute the Customer’s sole and exclusive remedy for any failure to meet the Uptime Commitment.
10. Customer data
10.1 Customer Data will be (and will remain) owned by the Customer. However, the Customer grants to Lentune a non-exclusive, non-transferable licence to use any the Customer Data for the purposes of performing the Services and otherwise exercising its rights under this Agreement, enhancing and developing the Services and communicating with the Customer and Authorised Users about the Services and any other matters that may be of interest.
10.2 The Customer also grants to Lentune a non-exclusive royalty free and irrevocable license permitting Lentune to copy, anonymize, aggregate, process and display the Customer Data to derive anonymous statistical and usage data, and data about the functionality of the Services, provided such data cannot be used to identify the Customer or its Authorised Users (Anonymous Data), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data). Lentune will be the owners of all right, title and interest in and to the Aggregate Data.
10.3 The Customer warrants and represents that it has the right to grant the licence in clause 10.2 in respect of all the Customer Data, and to input the Customer Data into the Services in the manner anticipated by this Agreement.
10.4 The Customer acknowledges that the Services depend on the entry by the Customer and its Authorised Users of accurate and up to date Customer Data.
10.5 The Customer acknowledges that Lentune is not responsible for, and has no liability in respect of, the Customer Data, loss or corruption of Customer Data, or how the Customer or any of its users use the Customer Data (or any outputs from it via the Service) and Lentune reserves the right to remove from its servers any content that may expose it to potential liability.
11. Ownership and intellectual property
11.1 The Customer and Lentune will each retain ownership of their respective Background Materials (including all Intellectual Property in them) and nothing in this Agreement will transfer any rights in or to their respective Background Materials.
11.2 All new Intellectual Property developed in the course of Lentune carrying out its obligations under this Agreement will be owned by Lentune from the date the Intellectual Property is created or developed, except that nothing in this Agreement will give Lentune ownership of any Customer Background Materials or Customer Data.
12.1 Each party will maintain as confidential at all times, and will not at any time, directly or indirectly disclose or permit to be disclosed to any person other than an employee, contractor or advisor on a “need to know” basis, any Confidential Information except, as required by law, as is already or becomes public knowledge, otherwise than as a result of a breach by the party disclosing or through an unauthorised disclosure by a third party, as authorised in writing by the other party, or to the extent reasonably required in order to give effect to this Agreement.
12.3 The Customer warrants that it has obtained all necessary consents from third parties to enable Lentune to access and process any Personal Information as may be necessary to enable Lentune to provide the Services and otherwise carry out its obligations under this Agreement.
13.1 Lentune represents and warrants that:
13.1.1 it will use its commercially reasonable efforts to ensure that the Subscription Services are accessible by the Customer and its Authorised Users in accordance with this Agreement;
13.1.2 any Other Services performed by Lentune for the Customer under this Agreement will be performed in a competent manner and in accordance with Good Industry Practice; and
13.2 If any of the representations and warranties in clauses 13.1 are breached, the Customer must notify Lentune as soon as is reasonably possible, but in any event within 30 days of the date on which the breach occurred. In respect of any breaches notified within this period, the Customer must give Lentune a reasonable time to fix the problem and (if necessary) to re-perform any relevant Services. This will be done without any additional charge to the Customer and will be the sole and exclusive remedy of the Customer against Lentune for any breach of the warranties in clause 13.1 or other defect in or failure of the Services.
13.3 Lentune will not be liable (including for any breach of any warranties or other terms in this Agreement) to the extent that the breach arises from or in connection with:
13.3.1 a breach of this Agreement by the Customer or any acts or omissions of the Customer or any of its Authorised Users;
13.3.2 use of the Services other than in accordance with normal operating procedures included on the Website or as notified to the Customer by Lentune;
13.3.3 any third party software, data or hardware accessed or used by the Customer or Lentune in connection with the Services;
13.3.4 any modification of a Service, unless the modification was made by or on behalf of Lentune or with Lentune’s prior written consent; or
13.3.5 any unauthorised use of the Services by the Customer or any of its Authorised Users.
13.4 Except as expressly set out in this Agreement, no conditions, warranties or other terms apply to the Services or to anything else supplied under this Agreement. In particular, Lentune does not warrant that the Services will be uninterrupted or entirely error-free.
14. Liability and indemnity
14.1 Nothing expressed or implied in this Agreement will confer any liability on either party (first party) in respect of any indirect, consequential or special loss, damage, cost or expense, or any direct or indirect loss of profits, loss of revenue (or anticipated revenue) or loss of data, suffered or incurred by the other party as a direct or indirect result of a breach by the first party of any of its obligations under this Agreement.
14.2 Notwithstanding any contrary provision contained in this Agreement, the maximum liability of Lentune to the Customer (and its Authorised Users) under or in connection with this Agreement (whether in contract, tort or otherwise) shall in no event exceed an amount equal to the Subscription Fees received from the Customer by Lentune in the Initial Term, or if no Initial Term exists, the first 12 months of the Term.
14.3 The Customer will defend, indemnify and hold Lentune (including its subsidiaries, affiliates, officers, employees, agents, partners and licensors) harmless from and against any and all claims, damages, costs, and expenses, including attorney’s fees, arising from or related to its failure to comply with this Agreement including, without limitation, as a result of any unauthorised use by the Customer or any of its Authorised Users of the Services or any Content.
15.1 Either party may terminate this Agreement at any time and with immediate effect by written notice to the other party if the other party:
15.1.1 has committed a material breach of this Agreement (which would include a failure to make payment by the due date for payment) has failed to remedy the breach within 10 Business Days of being notified in writing of the breach; or
15.1.2 has gone into liquidation or a receiver or statutory manager is appointed in respect of itself or any material part of its assets (other than for the purposes of a solvent restructuring) or has become unable to pay its debts as they fall due.
A failure to meet any Uptime Commitment shall not constitute a material breach of this Agreement by Lentune, unless such failure occurs in 3 consecutive months of the Term.
15.2 Lentune may, at any time throughout the Term, terminate this Agreement for convenience on 90 days’ notice.
15.3 Following the expiry of the Initial Term, the Customer may terminate this Agreement for convenience on 90 days’ notice.
15.4 On expiry or termination of this Agreement for any reason:
15.4.1 Lentune’s obligation to provide the Services will cease and the Customer’s right to use the Services or any Content obtained from the Services shall cease.
15.4.2 Lentune shall not be obliged to refund any pre-paid Fees on termination or expiry of this Agreement.
15.4.3 each party will cease using the other party's Confidential Information and will promptly return to the other party all copies of its Confidential Information in its possession or control or (at the other party's option) destroy them and certify in writing that this has been done, provided that the Customer acknowledges that its Customer Data may be retained for a period of up to six months following expiry or termination of the Agreement before it is deleted by Lentune and that Lentune may retain all Aggregate Data;
15.4.4 the Customer must cease using, and must delete from any media on which they are stored, all Login Details;
15.4.5 the Customer will pay any outstanding charges or other amounts payable under this Agreement within seven days of expiry or termination (as applicable);
15.4.6 expiry or termination of this Agreement will not prejudice a party's rights or remedies for any breach of this Agreement by the other party, where the breach occurred before expiry or termination.
16.1 The Website, APP or Subscription Services may provide links to other sites or resources. Because Lentune has no control over such sites and resources, the Customer acknowledges and agrees that Lentune is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources.
17. Apple and Google – App store conditions
17.1 If the Customer accesses the Subscription Services via the APP, the Customer acknowledges and agrees:
17.1.1 Where the APP is downloaded from the Apple Store:
(a) the Customer’s rights to install and use the APP are subject to this Agreement and the relevant terms in the Apple Store terms of service;
(b) Apple is not responsible for the APP in any way, including for any maintenance or support of the APP;
(c) to the maximum extent permitted by law, Apple has no warranty obligations with respect to the APP;
(d) Lentune (and not Apple) is responsible for addressing any claims by the Customer or a third party in connection with the APP (including any claims by a third party that the APP breaches that persons intellectual property rights); and
(e) though this Agreement is entered into between the Customer and Lentune, Apple, as a third party beneficiary under this Agreement, will have the right to enforce these terms against the Customer.
17.1.2 Where the APP is downloaded from the Google Play Store:
(a) the Customer’s rights to install and use the APP are subject to this Agreement and the relevant terms in the Google Play Store terms of service;
(b) Google is not responsible for the APP in any way, including any maintenance or support of the APP; and
(c) Lentune (and not Google) is responsible for addressing any claims by the Customer or a third party in connection with the APP (including any claims by a third party that the APP breaches that persons intellectual property rights).
17.2 For the benefit of each of Lentune, Apple and Google, the Customer represents and warrants that it is not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that it is are not listed on any US Government list of prohibited or restricted parties.
18. Dispute resolution
18.1 A party may, in the event of a genuine dispute relating to this Agreement (Dispute), give written notice to the other party specifying the subject matter of the Dispute and the parties must (acting reasonably and in a timely manner) attempt to resolve the Dispute by way of good faith negotiations between senior representatives of each party.
18.2 If the parties’ representatives fail to resolve the Dispute under clause 18.1 within 10 Business Days of the Dispute Notice, the parties will immediately be deemed to have submitted the Dispute to mediation in New Zealand.
18.3 Neither party may issue legal proceedings (except for urgent injunctive relief) unless it first complies with clauses 18.1 and 18.2.
19.1 Under no circumstances shall Lentune or its subsidiaries, affiliates, officers, employees or agents be held liable for any delay or failure in performance resulting directly or indirectly from any Force Majeure Event.
19.2 The Customer will not assign its rights or obligations under this Agreement without the prior written consent of Lentune. Any change in control of the Customer will be deemed to be an assignment under this clause 19.2.
19.3 No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party will in any way affect limit or waive that party's right to subsequently require strict compliance with this Agreement.
19.5 This Agreement is governed by the laws of New Zealand. The parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
19.6 This Agreement may be signed in any number of counterpart copies which, read together, will constitute one and the same document.